Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State
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Thursday, January 14, 2010

The doctrine of the exhaustion of administrative remedy

The doctrine of the exhaustion of administrative remedyMatter of Mirenberg v Lynbrook Union Free School Dist. Bd. of Educ., 63 AD3d 943

In this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy, noting that:

1. "One who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law."

2. "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when [a] an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or [b] when resort to an administrative remedy would be futile or [c] when its pursuit would cause irreparable injury."

3. "A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established.”

4. “The mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief."

The court then explored the impact of these elements with respect to Ethan Mirenberg's appealing the Superintendent Lynbrook Union Free School District's adopting the findings of a hearing officer that Mirenberg guilty of disciplinary charges filed against him.

Although Mirenberg had filed an appeal with the Commissioner of Education challenging the Superintendent’s action, he subsequently filed an Article 78 petition with Supreme Court seeking to overturn the Superintendent’s determination. Lynbrook asked Supreme Court to dismiss Mirenberg's petition on the grounds that his appeal to the Commissioner was then still pending.

Supreme Court agreed with the school district's argument and dismissed Mirenberg's petition "without prejudice," because Mirenberg had failed to exhaust his administrative remedies.The Appellate Division agreed with the Supreme Court’s ruling, again noting that the appeal before the Commissioner was still pending at the time Mirenberg had filed his petition in Supreme Court.*The court said that Mirenberg had not only failed to exhaust an available administrative remedy, he did not establish that an exception to the exhaustion of administrative remedies doctrine was applicable in his case.

Thus, said the Appellate Division, Supreme Court’s dismissal of the proceeding without prejudice on the ground that Mirenberg had failed to exhaust his administrative remedies was appropriate under the circumstances.

* The Commissioner of Education’s determination regarding Mirenberg’s appeal has not been published as of June 19, 2009.

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